Local Government

Summary

Mr C complained about the council's handling of the planning application for a music festival. In particular, he complained that the council unreasonably granted the developer permission to use a particular junction as the access route for the building and break-up of the event. He further complained that the council had failed to carry out adequate environmental monitoring at this junction. Mr C was also concerned that the council agreed to extend working hours and that they failed to take enforcement action when the developer failed to adhere to the amended hours. Finally, Mr C was unhappy that the council did not attach a planning condition to the planning consent that residents affected by any disruption should be compensated by the developer.

We took independent planning advice. We were satisfied that the council followed planning procedure in determining the planning application in accordance with the terms of the relevant legislation. The advice we received was that, while the council accepted that there was some disturbance to local residents, the planning conditions imposed were aimed at safeguarding the amenity, health and safety of neighbouring residents. As such, we did not uphold the complaint that the council unreasonably granted the developer permission to use the junction.

We also found that there was no requirement on the council, as planning authority, to carry out environmental monitoring. We found that conditions had been placed on the planning consent aimed at ensuring that the amenity, health and safety of residents was safeguarded and that disturbance was minimised. We did not uphold the complaint that the council failed to undertake environmental monitoring.

In relation to Mr C's concern that the working hours were extended, we found that the planning condition had allowed for a change in the hours of operation. We did not uphold this aspect of the complaint.

We were also satisfied that when the alleged breach of amended hours was brought to the council's attention, they took reasonable action. As such, we did not uphold the complaint that the council unreasonably failed to take enforcement action.

Finally, we were satisfied that the council correctly explained that they were unable to apply a planning condition requiring that affected residents should receive compensation from the developer and we did not uphold this aspect of the complaint.

Summary

Ms C, who works for an advocacy and support agency, complained on behalf of her client (Mr A). Ms C complained that the council unreasonably failed to respond to Mr A's complaints of anti-social behaviour by a neighbour. Ms C also complained about the council's complaints handling.

Our investigation found that the council did not respond to Mr A's concerns in line with the requirements of their anti-social behaviour procedure. The council told us that they had addressed issues appropriately where they had corroboration, while other issues were more appropriately addressed by the police. Our investigation found that the council had not kept Mr A sufficiently updated regarding the progress or outcome of his complaint, and that their records of Mr A's reports of anti-social behaviour concerns were not sufficiently detailed. In terms of the council's own complaints handling, we found that Mr A had complained three separate times before he received an appropriate response. As such, the council had failed to respond to Mr A reasonably and in line with their timescales. We upheld both of Ms C's complaints.

Recommendations

What we asked the organisation to do in this case:

• Apologise to Mr A for failing to meet their timescales for responding to complaints. This apology should comply with SPSO guidelines on making an apology, available at www.spso.org.uk/leaflets-and-guidance.

What we said should change to put things right in future:

• Staff responding to anti-social behaviour concerns and complaints should be aware of the requirements and relevant procedures.

In relation to complaints handling, we recommended:

• Staff responding to complaints should be aware of their responsibilities concerning timescales.

We have asked the organisation to provide us with evidence that they have implemented the recommendations we have made on this case by the deadline we set.

Summary

Mr C made a number of complaints to us about the council's handling of planning conditions for a quarry near his home. He complained that planning officers had discharged conditions without referring them to the council's planning committee. We took independent planning advice on Mr C's complaints. We found that, although the council's scheme of delegation had not been entirely clear, it had been appropriate for the officers to deal with the matter and that it did not need to be referred to the planning committee. That said, Mr C also stated that the information provided by the developer regarding the discharge of the relevant conditions amounted to a substantial change and should have been treated as a variation to the planning consent. We found that the council should have obtained further information before the conditions were discharged. We found that they needed to establish what material was to be extracted from the site to in order to consider whether the original consent had been breached. They also needed to consider whether their decision to discharge the relevant conditions was safe and investigate the possible mechanisms available to them to rescind that decision, should they consider this necessary. In view of this, we upheld this aspect of Mr C's complaint.

Mr C also complained that the council had failed to take appropriate steps to ensure the protection of the nearby high pressure gas pipeline. We found that it had been reasonable for the council to rely on the alternative controls and measures available to the organisation that manages the gas network in Scotland, rather than pursue the issue through the planning process and the application of planning conditions. We did not uphold this aspect of Mr C's complaint.

Mr C also complained about the council's actions in relation to assessing the flood risk of a proposed loch at the quarry. The council considered that they had all the information they needed in relation to this to discharge the conditions, and were closing the matter. This was a planning decision that the council were entitled to take as the planning authority. However, we found that there was no documentary evidence in the information we received from the council that set out how they had arrived at their decision. We considered that there should be some form of technical explanation in the records of the council's decision. In view of this, we upheld this aspect of Mr C's complaint.

Mr C also complained that the council failed to properly assess the risk of drowning at the site. We found that the loch would be subject to a number of statutory health and safety requirements outwith the planning process. The planning process should not be used to duplicate or form an alternative to using other more appropriate statutory controls and we did not uphold this aspect of the complaint.

Finally, Mr C complained that the council had failed to investigate the relevance of the Reservoirs Act in assessing the impact of the proposed loch. We found that the council had given adequate consideration to this matter and had received advice from their legal adviser confirming that the legislation was not applicable to the loch. We did not, therefore, uphold this aspect of the complaint.

Recommendations

What we said should change to put things right in future:

• The scheme of delegation should be clear on what is meant by the term, 'approval required by a condition'.
• The council should be clear about, and able to explain, the volume and constituent make-up of the material to be extracted from the site to enable a satisfactory assessment to be made as to whether the terms of the original consent have indeed been breached. They should consider whether their premature decision to discharge the relevant conditions on the basis of the details contained in the submitted plans is safe and investigate the possible mechanisms available to them to rescind that decision, should they consider this necessary.
• An adequate technical explanation of how they reached their decision on the risk of flooding at the site should be recorded in the records.

We have asked the organisation to provide us with evidence that they have implemented the recommendations we have made on this case by the deadline we set.

Summary

Ms C complained that the council wrongly advised her about the financial contribution they would make towards her mother (Mrs A)’s care home fees. This money represented Mrs A's entitlement to free personal and nursing care. Free personal care is available for everyone aged 65 and over in Scotland who have been assessed by the local authority as needing it. Free nursing care is available for people of any age who have been assessed as requiring nursing care services. The council over-calculated her entitlement but, while council staff realised this within a few months, they did not notify Ms C or the care home of the reduced payment level for more than two years after Mrs A was first entitled to the payments. Ms C was unhappy that she was only then made aware that a large debt had accumulated and had not had the ability to budget or plan for this. The council accepted their initial miscalculation and offered to cover the additional costs until the point they had picked up the error. Ms C didn't consider this was fair or reasonable as the debt had continued to increase for a further 18 months before the council made anyone aware of the error.

The council told us that they were putting new processes in place to ensure that changes to the contribution amount would be notified to relevant parties, and that the error in this case was a result of a manual input error which could no longer occur as the process had been automated. Our investigation found that the council's initial calculation was incorrect and that Mrs A was only ever entitled to the lower contribution amount. However, we considered that it was poor customer service and unacceptable not to advise Ms C of the correction as soon as reasonably possible. We, therefore, upheld the complaint.

Recommendations

What we asked the organisation to do in this case:

• Make an additional contribution payment for Mrs A to the care home. The payment should represent the difference between the incorrect and the correct contribution figure for the period from the date they identified the error to the date Miss C was notified. The payment should be made by the date indicated by us. If payment is not made by that date, interest should be paid at the standard interest rate applied by the courts from that date to the date of payment.

What we said should change to put things right in future:

• Relevant parties should be given prompt notification of unscheduled changes.

We have asked the organisation to provide us with evidence that they have implemented the recommendations we have made on this case by the deadline we set.

Summary

Mr C complained to the council that an energy performance certificate (EPC) for his home was inaccurate as no assessment was carried out. The council advised him that they considered the assessment had been carried out. Mr C was dissatisfied and complained to us. The council provided us with a written statement from the assessor that he had carried out the assessment as noted on the EPC. We decided that there was no firm, objective evidence to allow us to determine whether Mr C or the council's position was correct. Given this, we did not uphold the complaint.

Summary

Ms C complained about her daughter's (Miss A) primary school. Miss A had recognised issues at primary school, particularly with her emotional literacy and communication skills. She also reacted badly when she made mistakes. Her head teacher had discussed these issues with Ms C and steps were agreed to help Miss A. However, her problems continued and the head teacher referred the matter to social work in terms of the Scottish Government's 'Getting It Right For Every Child' (GIRFEC) procedures. Ms C complained to the council that the head teacher discriminated against her and that the council were unreasonable in the way they dealt with her complaint.

We investigated Ms C's complaint and made further enquiries of the council. We found that GIRFEC procedures are the national approach to improve outcomes for, and to support the wellbeing of, children by offering the right help at the right time. The child is the focus for all organisations involved and the approach encourages early intervention by professionals, for instance, by social work who could provide help to avoid crisis situations at a later date. Miss A had some problems which were not resolving, although her school had involved Ms C in their efforts to help her. Accordingly, the head teacher approached social work in line with GIRFEC guidance. While Ms C considered this to be unreasonable, we found no evidence of this. We did not uphold her complaint. Although Ms C also complained about the way the council later considered her complaint, she was unhappy with the merits of the decision rather than the way the decision on her complaint had been made. We did not uphold this complaint.

Summary

Mr C complained about the council's response to a report from the police about his daughter (Miss A). Miss A had been involved in an incident following which she was charged with an offence. Shortly afterwards, Miss A and her mother both received letters from the council suggesting that Miss A may be referred to the Scottish Children's Reporter Administration (SCRA) if she had any further involvement with the police.

The police later apologised for the way they handled the matter, dropped the charge and apologised to Miss A and her family. Mr C complained that the council's response had been unreasonable. He considered that the letter his daughter received had been threatening and inappropriate in the circumstances.

Following our review of the council's policies and procedures we concluded that the council had acted correctly and accordingly we did not uphold this complaint. However, we did note that whilst we considered it to be correct for the council to highlight to Miss A the possible consequences of further involvement with the police, the council could have used a more empathetic tone in correspondence.

Recommendations

We recommended that the council:

• apologise to Miss A, and to her parents, for not having handled this matter more sensitively; and
• reflect on this complaint, and consider how matters could have been handled more sensitively.

Summary

Mr C complained that the council unreasonably failed to enforce planning conditions associated with a retrospective planning permission for an area of hard standing at a neighbouring property. The permission granted for this area limited the use of the hard standing to uses associated with the small holding to which it was attached and prevented the use of the area for commercial purposes.

Mr C was unhappy that the area was being used for the parking of vehicles and the storage of items associated with a commercial business operated by his neighbour. He was also concerned that the council failed to take steps to have an unauthorised transport container removed from the site. In addition, he was unhappy with the time taken by the council to respond to his reports of unauthorised development.

We found that Mr C was correct in his interpretation of the planning conditions, but noted that the breaches which were taking place were of a temporary nature, because they related to an additional temporary planning consent. The council had taken into account the use of the area by commercial vehicles and were taking steps to address this by assisting the neighbour to obtain a new site for his office and equipment storage. We also noted that the council had been advised that the container would be removed from the site. In these circumstances we were satisfied that the council's decision not to take formal enforcement action was reasonable and we did not uphold this aspect of the complaint. We were, however, critical of the council's delay in responding to Mr C's reports of breaches in planning control. We upheld this aspect of the complaint.

Recommendations

What we asked the organisation to do in this case:

• Review the evidence they have of the container to ensure that, if it is unauthorised, they are able to take enforcement action to have it removed, should they consider this to be an appropriate course of action.
• Apologise to Mr C for their delay in investigating his reports of breaches in planning control.

What we said should change to put things right in future:

• Staff should investigate reported breaches of planning control promptly, and in line with their obligations, as detailed in the enforcement charter.

We have asked the organisation to provide us with evidence that they have implemented the recommendations we have made on this case by the deadline we set.

Summary

Mr C complained that the council's Trading Standards department failed to take action against a motor trader in respect of his complaint.

Mr C was unhappy with the condition of a vehicle he purchased and later shipped outside the UK. He was also concerned that the vehicle registration document and a vehicle inspection certificate were not provided. After complaining to the trader, Mr C contacted Trading Standards. Mr C was of the view that Trading Standards were responsible for taking action under the Road Traffic Act 1998 (RTA) and the Consumer Rights Act 2015.

The council explained to Mr C and us that Trading Standards were not empowered to prosecute traders for a breach of Section 75 of the RTA. In addition, the police told Mr C that the RTA only applied to vehicles driven in Britain. The council also explained that Trading Standards could, following the evaluation of relevant, robust and corroborated evidence, make a report suggesting prosecution to the Procurator Fiscal Service (PFS), but that the decision on whether or not to prosecute lay with the PFS and not Trading Standards. In this case, Trading Standards determined that Mr C did not provide them with sufficient evidence upon which to bring or suggest a prosecution, and they explained to Mr C the type of evidence they would need to consider this.

Trading Standards advised Mr C that his best recourse was to follow the guidance of Citizens Advice Scotland on a problem with a used car. Mr C did not accept the council's explanations and advice but his disagreement, of itself, was not evidence of a failing by Training Standards.

We concluded that the actions of the council were reasonable and proportionate to the issues Mr C brought to Trading Standards and therefore we did not uphold his complaint.

Summary

Mr C complained that the council failed to appropriately explain the charges relating to two statutory notices served in respect of a property of which he was one of the owners.

A tender process occurred and the contract administrator advised the owners of the property of the estimated costs. Subsequently, an update from the contract administrator advised owners of increased costs to the project. Owners of the property, including Mr C, raised concerns about this. Following the completion of the works the project was subject to a review by an independent external consultant. This review resulted in a number of reductions to the costs of the work.

Mr C complained to the council about the explanations they provided regarding the works. He requested further explanatory material from the council about reconciling costs through the course of the project. The council provided additional information on the expenses for the project, but they also relied on the professional judgement of the independent external consultant who said that the remaining costs were recoverable.

Having reviewed the relevant guidance, and the correspondence between Mr C and the council, we noted that there had been some shortcomings in the explanation given during the course of the works. We did acknowledge, however, that the council had subsequently sought a review of the project, applied a reduction to the costs and provided additional explanations. On balance, we upheld Mr C's complaint.

Recommendations

What we asked the organisation to do in this case:

• Provide Mr C with a copy of the relevant documents detailing changes in the costs to the project.
• Apologise to Mr C for the failures in communication highlighted in this investigation.

We have asked the organisation to provide us with evidence that they have implemented the recommendations we have made on this case by the deadline we set.